Editorial: Limiting disclosure

Legislation is like barbed wire: for everything it fences in, it also fences things out — and often, how a piece of legislation looks depends on what side of the fence you’re on.

Take proposed changes to federal access to information law.

Last week, the federal Liberals said they were delivering on an election promise to strengthen that law; the Prime Minister’s Office and cabinet ministers’ offices would be included under the law, and the government promised that the country’s information commissioner would be able to compel the release of documents.

It sounded great on the opposition side of the fence.

In government, though, the Liberals are not planning to include cabinet ministers or the Prime Minister’s Office in the law; instead, under a program of “proactive disclosure,” they plan to release some chosen details of the operation of cabinet offices.

It’s not the same thing at all.

As for the commissioner ordering the release of materials, well, government departments will be allowed to go to court to stop the release of information.

On top of that, the Liberals have added a mechanism that will allow departments to refuse to fulfil requests that officials feel are just too difficult.

Government officials, no doubt, see the plan to introduce the ability to refuse to address a request that’s too complex or onerous on departmental resources as a reasonable way to address a problem. On the other side of the fence, though, such an exemption looks more like just another handy loophole to use when you want to withhold potentially embarrassing information from the public.

The problem is really a conflict of interest; the government that is drawing up the legislation has too much to lose from completely opening the doors on its governance, and while openness and accountability are regularly an opposition mantra, they are a government bugbear.

There is, of course, an easy solution, and one that provincial governments have availed of: set up an independent commission to review federal access law, and abide by the recommendations the commission suggests.

After all, the federal government already has someone who could be an able, experienced and informed chair. Canada’s Information Commissioner, Suzanne Legault, is not seeking a new term. With her experience with the highs and lows of access legislation, she would be a more than able head of a committee reviewing how the current act meets, or fails to meet, its goals.

It would be no cakewalk for the federal government. Legault wrote about her disappointment in the Trudeau government’s approach to access law improvements in her latest report: “Our investigations reveal, once again, that the Act is being used as a shield against transparency and is failing to meet its policy objective to foster accountability and trust in our government.”

The Liberals are still promising a legislative review of the law — sometime.